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I have received your friendly letter of the 18th inst. The few lines which
answered your former one of the 21st of January last, were written in haste and
in bad health; but they expressed, though without the attention in some
respects due to the occasion, a dissent from the views of the President, as to
a bank of the United States and a substitute for it; to which I cannot but
adhere. The objections to the latter have appeared to me to preponderate
greatly over the advantages expected from it, and the constitutionality of the
former I still regard as sustained by the considerations to which I yielded in
giving my assent to the existing bank.

The charge of inconsistency between my objection to the constitutionality of
such a bank in 1791, and my assent in 1817, turns on the question, how far
legislative precedents, expounding the Constitution, ought to guide succeeding
legislatures, and to overrule individual opinions.

Some obscurity has been thrown over the question, by confounding it with the
respect due from one legislature to laws passed by preceding legislatures. But
the two cases are essentially different. A constitution being derived from a
superior authority, is to be expounded and obeyed, not controlled or varied by
the subordinate authority of the legislature. A law, on the other hand, resting
on no higher authority than that possessed by every successive legislature, its
expediency as well as its meaning, is within the scope of the latter.

The case in question has its true analogy in the obligation arising from
judicial expositions of the law on succeeding judges; the constitution being a
law to the legislator, as the law is a rule of decision to the judge.

And why are judicial precedents, when formed on due discussion and
consideration, and deliberately sanctioned by reviews and repetitions, regarded
as of binding influence, or rather of authoritative force, in settling the
meaning of a law? It must be answered: 1st. Because it is a reasonable and
established axiom, that the good of society requires that the rules of conduct
of its members should be certain and known, which would not be the case, if any
judge, disregarding the decisions of his predecessors, should vary the rule of
law according to his individual interpretation of it. Misera est servitus
ubi jus est aut vagum, aut incognitum. 2d. Because an exposition of the law
publicly made, and repeatedly confirmed by the constituted authority, carries
with it, by fair inference, the sanction of those who, having made the law
through their legislative organ, appear under such circumstances to have
determined its meaning through their judiciary organ.

Can it be of less consequence that the meaning of a constitution should be
fixed and known, than that the meaning of a law should be so? Can indeed a law
be fixed in its meaning and operation, unless the constitution be so? On the
contrary, if a particular legislature, differing in the construction of the
constitution, from a series of preceding constructions, proceed to act on that
difference, they not only introduce uncertainty and instability in the
constitution, but in the laws themselves; inasmuch as all laws preceding the
new construction and inconsistent with it, are not only annulled for the
future, but virtually pronounced nullities from the beginning.

But it is said that the legislator, having sworn to support the
constitution, must support it in his own construction of it, however different
from that put on it by his predecessors, or whatever be the consequences of the
construction. And is not the judge under the same oath to support the law? yet
has it ever been supposed that he was required, or at liberty to disregard all
precedents, however solemnly repeated and regularly observed; and, by giving
effect to his own abstract and individual opinions, to disturb the established
course of practice in the business of the community? Has the wisest and most
conscientious judge ever scrupled to acquiesce in decisions in which he has
been overruled by the mature opinions of the majority of his colleagues, and
subsequently to conform himself thereto, as to authoritative expositions of the
law? And is it not reasonable that the same view of the official oath should be
taken by a legislator, acting under the constitution, which is his guide, as is
taken by a judge, acting under the law, which is his?

There is in fact and in common understanding, a necessity of regarding a
course of practice, as above characterized, in the light of a legal rule of
interpreting a law; and there is a like necessity of considering it a
constitutional rule of interpreting a constitution.

That there may be extraordinary and peculiar circumstances controlling the
rule in both cases, may be admitted: but with such exceptions, the rule will
force itself on the practical judgment of the most ardent theorist. He will
find it impossible to adhere to, and act officially upon, his solitary opinions
as to the meaning of the law or constitution, in opposition to a construction
reduced to practice, during a reasonable period of time; more especially where
no prospect existed of a change of construction by the public or its agents.
And if a reasonable period of time, marked with the usual sanctions, would not
bar the individual prerogative, there could be no limitation to its exercise,
although the danger of error must increase with the increasing oblivion of
explanatory circumstances, and with the continual changes in the import of
words and phrases.

Let it then be left to the decision of every intelligent and candid judge,
which, on the whole, is most to be relied on for the true and safe construction
of a constitution, that which has the uniform sanction of successive
legislative bodies through a period of years, and under the varied ascendency
of parties; or that which depends upon the opinions of every new legislature,
heated as it may be by the spirit of party, eager in the pursuit of some
favourite object, or led astray by the eloquence and address of popular
statesmen, themselves, perhaps, under the influence of the same misleading
causes.

It was in conformity with the view here taken of the respect due to
deliberate and reiterated precedents, that the Bank of the United States,
though on the original question held to be unconstitutional, received the
executive signature in the year 1817. The act originally establishing a bank
had undergone ample discussions in its passage through the several branches of
the government. It had been carried into execution throughout a period of
twenty years with annual legislative recognitions; in one instance indeed, with
a positive ramification of it into a new state; and with the entire
acquiescence of all the local authorities, as well as of the nation at large,
to all of which may be added, a decreasing prospect of any change in the public
opinion adverse to the constitutionality of such an institution. A veto from
the executive under these circumstances, with an admission of the expediency,
and almost necessity of the measure, would have been a defiance of all the
obligations derived from a course of precedents amounting to the requisite
evidence of the national judgment and intention.

It has been contended that the authority of precedents was in that case
invalidated by the consideration, that they proved only a respect for the
stipulated duration of the bank, with a toleration of it until the law should
expire, and by the casting vote given in the Senate by the Vice-President in
the year 1811, against a bill for establishing a national bank, the vote being
expressly given on the ground of unconstitutionality. But if the law itself was
unconstitutional, the stipulation was void, and could not be constitutionally
fulfilled or tolerated. And as to the negative of the Senate by the casting
vote of the presiding officer, it is a fact well understood at the time, that
it resulted not from an equality of opinions in that assembly on the power of
Congress to establish a bank, but from a junction of those who admitted the
power, but disapproved the plan, with those who denied the power. On a simple
question of constitutionality, there was a decided majority in favour of it.

Mrs. Madison joins me in hoping that you will not fail to make the intended
visit to Virginia, which promises us the pleasure of welcoming you to our
domicile, and in a sincere return of all the good wishes you kindly express for
us.